Not our kind of club

Recently, Dallas Buyers Club LLC – the owners of rights in the film of the same name – applied to the Federal Court for iiNet and a number of other providers to reveal details of people they suspect of infringing copyright on their film. This is not an action against iiNet.

In plain terms, Dallas Buyers Club wants the names and contact details of our customers they believe may have illegally shared their film.

Known as ‘preliminary discovery’, this practice is used in a wide range of cases where the identity of the person or company you may want to take legal action against is unknown.

iiNet has decided to oppose this discovery application.

But how do movie studios get my details?

We believe in treating people fairly and we certainly don’t monitor your activities. We have no need to.

One way copyright holders collect evidence is through online investigative bodies that detect the IP addresses (issued by ISPs) of services illegally sharing content and then apply to a court using the preliminary discovery process, to get the personal details of the account holders, using those IP addresses.

iiNet would never disclose customer details to a third party, such as movie studio, unless ordered to do so by a court. We take seriously both our customers’ privacy and our legal obligations.

Why oppose this action?

We don’t support or condone copyright infringement. In fact, our contract terms require that our customers must not use our service to commit an offence or infringe another person’s rights – this includes copyright infringement. We also have a policy that applies to people who infringe the law.

It might seem reasonable for a movie studio to ask us for the identity of those they suspect are infringing their copyright. Yet, this would only make sense if the movie studio intended to use this information fairly, including to allow the alleged infringer their day in court, in order to argue their case.

In this case, we have serious concerns about Dallas Buyers Club’s intentions. We are concerned that our customers will be unfairly targeted to settle any claims out of court using a practice called “speculative invoicing”.

What is speculative invoicing?

Speculative invoicing, as practiced overseas, commonly involves sending intimidating letters of demand to subscribers seeking significant sums for an alleged infringement. These letters often threaten court action and point to high monetary penalties if sums are not paid.

Our concerns with speculative invoicing by Dallas Buyers Club in Australia include:

Because allegations of copyright infringement are linked to IP addresses, the alleged infringer could be incorrectly identified if details of the account holder were revealed. For example, the relevant IP address could have originated from a person in a shared household, an individual visiting a household which has open WiFi, or a school, or an Internet cafe.

Because Australian courts have not tested these cases, any threat by rights holders, premised on the outcome of a successful copyright infringement action, would be speculative.

What happens next?

Because iiNet has opposed the discovery action, the Federal Court will be asked to decide if customer information should be handed over by ISPs named in the action. A date for the hearing of the application is likely to be early next year. More information is available from the Federal Court.

So what happens if Dallas Buyers Club win?

If Dallas Buyers Club succeeds in its action, iiNet will be obliged to comply with any court orders issued – such as to hand over the requested customer details. Once those details are handed over, we expect these customers to face letters of demand, such as those we’ve seen overseas. In some instances these letters have demanded settlement amounts of up to US$7,000.

iiNet is concerned that such a development would open the floodgates to further claims by other rights-holders, leading to more Australians being intimidated to pay exorbitant amounts in an attempt to avoid improbable litigation.

What happens if iiNet win?

If we succeed before the Federal Court, then we will not be ordered to hand over our customers’ details.

Nevertheless, rights holders may continue to bring these types of applications to pursue alleged infringers. Whether they do so will likely depend on the Court’s reasoning in this important test case.

But rest assured, iiNet will continue to defend the privacy of its customers’ personal details as we are entitled to do so under Australian law.

Unfortunately, it can be a matter of “good luck having enough strength and money to survive the process”.

Once it is in the hands of the legal eagles, your option to defend your innocence or to prove the uncertainty of their claim becomes horrendously expensive. That is why speculative invoicing works. It is cheaper to pay than to prove your innocence. Unfair and ugly.

Good to see iinet stand up to bullying tactics. Piracy is illegal. No one I think questions that and if caught they should have their day in court. However open bullying is rubbish. If you think I wronged you prove it in court. If found guilty I will take my punishment, if you are unwilling to do that then you have nothing. Cowards should be stood up to and iinet you have my thanks for doing just that.

As a Netspace/iiNet customer for over 4½ years, I have long been impressed by the resolve of your company to provide quality services, and will continue to do so for as long as you maintain your stance against those organisations who wish to impose their corporate greed on internet users everywhere. Congratulations for standing up for us, and keep up the great work!

I agree – this is not my type of club and as a result of this action I have no desire to see this film let alone bothering to download it. Keep up the good work iinet – we do not wish to have our privacy invaded by these sort of people.

Thank you iinet. We, in this household do not support or condone copyright infringement either and we certainly do not do it.
As a long time client of iinet we have come to respect iinet in its dealings with our information and trust it will continue.
Thank you

As a maker of copyright material, I am hugely sympathetic to copyright owners making their point in law. However, speculative invoicing and preliminary discovery appear to be no better than the spam emails I receive on a regular basis. Spams also speculate that if they terrorise enough people, someone will pay up. The penalty to the individual rarely matches the actual loss to the company as they are hoping to recoup their total loss through a selected few.
There are many reasons for this type of scam to be eradicated. Just defending yourself is an expensive exercise and the burden unfairly placed on a proportionately large number of people who did nothing wrong.
Over the years, iinet have been active in litigation and policy development in the digital industry and I have always found your complaints/comments/suggestions to lawmakers to be sound, considered and fair (unlike those they stand against). I consider that a part of my monthly fee is supporting an organisation that takes their relationship with clients seriously and are strong enough to take a stand on issues of vital importance to their customer base.
Thank you iinet. I, for one, appreciate your concerns. They are valid. Jessica

As someone who does not believe in the human nonsense of a monetary-based societal construct, I applaud iiNet’s resolve in such matters and oppose the conceptual viewpoints in the modern world of irrationality, control and manipulation.

Get real, humans! A monetary system does not work, has never worked and will never work. As a societal construct, it is fundamentally flawed.

Applaud your decision. I don’t have iinet services but your actions certainly mean your business will be high on the list if I do end up changing providers in the future. And it’s not like I do any “illegal” activity anyway, but to protect your consumers is admirable.

Thank you so much for standing up for your customers and their rights. Copyright today has become a tool for large corporations full of people who have nothing to do with the creative work to make unreasonable sums of money. And when they aren’t satisfied with that, they extort money from people who just want to watch a film, on the basis of money they could hypothetically have made. Stupid laws are still laws, but handing these people open access to subscriber details would certainly result in these unreasonable intimidation tactics becoming the norm. Due process, people. It’s a thing.
So thanks iiNet. It’s nice to know someone is willing to take a stand against these bully tactics.

This appears to be a huge fishing trip as there is no way to determine exactly what is being downloaded unless the connection is constantly monitored.

I utilise an international VPN service in conjunction with an international procurement and delivery service to circumvent the unfair, uncompetitive, and (i feel illegal) activities of companies that continue to price gouge Australia in contravention of our laws regarding this behavior. I have paid for all the goods and services i have received at a fair rate (without the Australian price gouging).

This leaves me in a precarious position as the VPN is encrypted and there is no way to tell what is being conducted other than usage, which could be for anything (including working remotely). I also have a steam game account, which is legal, and uses an encrypted connection to download purchased games (which can be in excess of 10GB).

Interestingly i just conducted a quick search to reveal this movie is $29.99 in Australia and $14.99 in the US (roughly $17.00 Australian). Both prices have been garnered from the Apple iTunes store and represents a 75% markup (price gauge) for an identical downloaded product with no shipping or other additional service or product.

This presents a very slippery slope as any attempt to harass someone in a similar position could readily result in criminal action for attempted blackmail.

Incidentally i had not heard of the movie and have no intention of viewing a movie promoted by a company with such immoral objectives.

If the intent is to ‘pre invoice’ on principle a follow up in a court of law pursuing a statutory damages claim would result in a similar ‘invoice’ amount the principle is flawed.

Speculative damages are intended to be used where damages (losses) cannot be determined.
For a video – which in this case is the very singular “Dallas Buyers Club” – the losses can be very easily determined (from $12-$30 on Blu-ray, iTunes $14.99). So taking into account the retailers ‘cut’ this would amount to significantly less than $10 for the license holder.

Ignoring the privacy implications (which I could write an essay on) the above shows a fundamental issue with our legal system if this is allowed to progress –

Imagine for a moment that a shop catches a thief stealing a $30 piece of clothing. If this precedent is set then surely it would then allow that shop to present a ‘speculative invoice’ of $7000 to that person instead of calling the police and dealing with it appropriately under law.

I hope these money worrying US Companies don’s think that by prosecuting downloaders they will increase their cash take because they will be very sorely disappointed. They can persuade the Australian Attorney General to outlaw downloading and they can for the most part stop it,But that will not lead to increased sales,As far as I can see the only ones who will see a downturn is the ISP’s because people will say “I can’t get my film that way so I will need less downloads,Equals reduced revenue for the said ISP’s

I am just wondering what the “online investigative bodies that detect the IP addresses (issued by ISPs) of services illegally sharing content” referred to in the article means? Technically how would the producers of Dallas Buyers or any other movie know which IP has accessed Bit Torrent or any other torrent site to download content at any particular time? Or do they lay a trap by putting up a copy of the movie on a torrent site and seeing who accesses it? I noticed in a complaint issued by Dallas Buyers Club in a US Court that they “software using geolocation functionality is used to confirm the geographical location of the computer used in the infringement …. (and) an IP address’ geographic location can be further narrowed by cross-referencing this information with secondary sources such as data contributed to commercial databases by ISPs…” Would be interesting to understand how this all works.

I for one am very frightened by this whole situation – I did NOT illegally download this movie, but I notice that my IP changes almost daily, so if this company wins the court case that will come from this what is to stop iinet from incorrectly identifying me? It’s just a mess.

No chance can they ever prove without doubt that a person whose name is associated to the IP address has illegally downloaded the file. If you have a wireless router connection with no password setup, anybody can access your router and use it to download whatever they like.
iinet is doing the right thing here. Thousands of people can be wrongly accused and bullied by these American cowboys into court cases to pay fines they know nothing about. Plus its a high cost to pay for lawyers to represent you in court even if you are innocent.
The Australian courts should NEVER allow itself to be bullied into supplying private personal information to anybody for any reason unless its a crime committed on our own soil and especially for something as trivial as a downloaded file on the internet by some pimple faced teenager who is not old enough to even vote! Rest assured, I bet there are more Americans downloading these files than what there are Australians. Your stand over tactics and bullying will not work here so you can rob Australians of their money! America… land of the law suit!

Ha. Wouldn’t these people simply go and buy a dvd of this movie and claim they have the original, and they only downloaded it to computer because they don’t know how to convert from a DVD to a mp4. Last time I checked, you are legally allowed to posses and make a COPY of something you already possess. It’s called duplicating, not copyright infringement!!!

Just look at those Hollywood stars dressed to a T in suits with million dollar smiles. As if all those Hollywood fat cats aren’t making enough money as it is. “Oh, I have $50 million and I can get a few more thousand dollars by chasing down some illegal teenage downloaders”. For sanity’s sake, they are money hungry blood sucking vampires. AMERICA… LAND OF THE LAWSUIT.

@chris, Seriously, this is the worst argument you could possibly make and I’m sick of people pulling this worn old chestnut out. Do you think Matthew McConaughey is sitting home personally writing these letters? There are a tiny fraction of actors and directors making big bucks in Hollywood. Take a look at the credits of any major film you watch. There are THOUSANDS of people involved in making these films, who are making a standard living wage just like anyone else. Add in the distributors and everyone working in associated industries, like your kids looking for a part time job at a movie theatre that is about to close because everyone is now downloading.
Yes these companies are leeches, but they are far removed from the Hollywood stars and people who are actually working everyday to entertain us all. They probably don’t even care about piracy, they just see a chance to make money.
I applaud iiNet for it’s stance in this matter by the way, as a win for these people may just open a floodgate that we can’t stop.

Thanks for taking this approach. I certainly won’t be watching that movie now out of principle.

I have no idea whether my internet connection has downloaded it or not – I have a teenage kid with friends. Who knows what they get up to.

I even do the right thing – subscribe to 1 legal music service and 2 legal video streaming services. Don’t need the hassle of these low life types trying to extort money out of people – regardless of whether my IP address is alleged.

As long as IInet keeps taking this approach, I will keep subscribing to them.

@Dianne,
yeah im sure my house mate downloaded this bloody movie on my iinet account last April. Hes gone back to the US. Im not with iinet anymore so two years down the track if iinet lose i get a bloody letter for something i nevet did saying pay up !!

the problem of “price gouging” is one of the reasons I download movies via torrent, as I think that those greedy s-o-b’s in the movie industry get enough easy money for doing a fairly shabby job.

I only want to ever watch a movie once, so spending upwards of $22 for a smelly cinema seat or $30 or so for a dvd, blu-ray or digital download seems a rip-off.

A heavily compressed 700MB file is all I usually end up watching, and 9 times out of 10 I end up deleting it before watching all of it because it is cr@p. Great marketing, interesting trailer, but miserable plot and forgettable acting.

And in any case, the internet isn’t free, and what else am I going to do with my iinet 100GB anytime quota?

Thinking of getting one of those torrent-friendly VPNs like TOR if this silly business from the US keeps going, but would it matter now? How far back do their IP searches go? Even if I solemnly swear to not download movies for free from now on, am I already damned and facing litigation as a result of a port-scan these so-and-so’s conducted last year?

“iiNet has decided to oppose this discovery application”. Yep good work. But it scares me it was a decision. Shouldn’t it be against the law to disclose the information of customers to arbitrary third parties, especially ones from other countries!??

Any chance iiNet could have a open VPN service for its customers at a reasonable fee or included. This will allow iiNet to wash their hands of their users action as they won’t know who or what their customers as doing on the net and also protect our privacy.

So last month I received a letter from my internet provider here in America saying that the Dallas Buyers Club company want my personal details so their representatives can file a lawsuit against me for allegedly illegally downloading the movie. My internet provider willingly obliged and I am now awaiting a big settlement demand probably in the thousands $$$. However I just read that the same company have also requested information from iiNet (my old internet provider in Australia) of alleged illegal ‘downloaders’, but they have directly refused this request saying they respect the customer’s privacy. Kudos to you iiNet, I wish there were more companies that cared about their customers in America…

Keep up the great work iiNet. Hopefully will see a company like yourselves in America one day!

Your resolve for fairness make me proud to be your customer! Thank you!
Maybe these corporate thieves should think about their pricing policies to the Australian market, why is it nearly double the price in Australia from the same delivery mechanism, why does it cost a family $100 to go to the movies. If you price things fairly, there is no market for piracy and it disappears!

This is entirely the correct action to take. It is the moral position, and it is particularly impressive to see a corporation acting in such a way.

As someone unfortunate enough to have paid to see this horrible movie in a cinema, I expect this unethical action is their ruthless attempt to generate the revenue they probably promised their VC investors.
Just get over the fact you made a horrible movie and the critically declared failure is the cause that people don’t wish to pay to view it…

In all the euphoria about how great it is to have an ISP like iiNet defending their privacy and their rights to steal other people’s creative products, it seems to be overlooked that the illegal activities of pirates who think they are getting something for nothing, are costing iiNet a great deal of money and time. This will eventually and inevitably affect iiNet’s costs and our services. iiNet has been caught as the meat in the sandwich, defending illegal activities on a point of principle. Perhaps it would be best if iiNet lost the case, and the IP addresses identified as stealing intellectual property were left to defend themselves. I would shed no tears for them.

Thank you, bullying is an unacceptable practice, as is copyright infringement. I support your actions.

One question tho, clearly you keep records of who has used which Dynamic ip, and when. If not, then you could not comply with the request or even a court order. But you say you will comply. Why keep those records? Is there a legal requirement?

Good on you iinet. Your first rate customer service and view to protect your customers and provide ethical leadership in the digital industry is why I stay a customer. Maintain your stance for ethical internet and customer privacy.

Well done, iiNet. Your commitment to fair play is one of the reasons why I have been with iiNet for over 10 years. This type of speculative gouging should never be allowed to get a foothold here in Australia. Interestingly enough I just had a look on Youtube and the full movie can be viewed via Youtube. Will this company also require the names of all those who watch YouTube so they can broaden their gouge.

With the introduction of streaming music and video subscription services (Fetch/Sony MU & VU) at least the end users/customers now have a decent choice at a reasonable price of content.
Gone are the days that I used to chase this content by “other” means.
It still makes me angry though when certain content (GofT) is still monopolised by unmentioned content providers demanding excessive fees!
Well done iinet from a long term customer.

Unfortunately I believe that there is also an underlying issue with all this, it looks like only iinet and its subsidiaries are being targeted in this action as I see that Optus and Telstra are being left alone.

I see this as retribution for iinet continually standing up for its customers rights and it is unfortunate that we are the ones who will be in the firing line. This is very discriminatory so hopefully the courts stand behind iinet.

Piracy is a problem but as Pedro said they movie producers and distributors have no qualm in screwing us whenever they can.

Thank you iiNet.
It’s refreshing and heartening to do business with a company that genuinely has its customers interests at heart.
I make it a point to recommend iiNet to any of my friends who are looking to setup an Internet connection or switch providers.
Keep up the great work!

Thanks guys, keep up the great work. In this day & age it is really good to know that there are companies like iinet, whom we have been with for nearly 15 years, look after our privacy which is all too transparent as it is.

Can iinet please clarify whether activity logs are actually retained for the purpose of this discovery. The following statement seems to indicate to me that no history of who would have downloaded the mentioned movie is retained and hence available to be provided to that company.

My neighbour just told me he discovered his wireless router does not have any security configured. Not sure if he downloads torrents (hope not), but what IF someone has hijacked his router and uses his connection for copyright infringing activities??? Sure, my neighbour is no tech wiz …..

I only presume this would complicate the case for the buyers club crowd even more?

Isn’t it against the law in Australia to “go on a (legal) fishing expedition?” I think from memory and someone with more legal knowledge will correct me if I am wrong, but in all Australian jurisdictions you need to know the information you want before you can ask someone to provide it as evidence.

I have not seen this movie and now never will. In fact, the sheer greed of these companies disgusts me. They spent 5 million and made 55 million, as if that is not enough, now they want to screw over some poor individuals. This company really needs to take a good look at itself and realize its real motivation… Greed at any price…

Thank you iinet for not caving to these demands. That is why I am with you!

I’m mad as hell about this issue and my support for iinet is bordering on the evangelical! I just posted a reply-comment on “The Age” website that sums up my position:
It’s not only really easy to use bit torrent (just google to find out how to use it), but it’s pretty easy to do ANYTHING – eg from learning how to make curtains to learning how to use a VPN – thanks to the internet and google or other search engines. What these middle men and a few actual content creators are doing is flying against the whole ethos of the internet. At best, they’re dinosaurs and just … don’t … get … it. Basically, no-one “owns” the internet. You don’t like Microsoft? Use a Linux operating system. You can’t afford Photoshop software? Use GIMP, equivalent software created and made available for free by people dedicated to “open source” products to keep the internet open and accessible to everyone. It’s really incredible to see the generosity of spirit and huge amount of time and energy devoted by internet users to helping others. The grasping, greedy and dishonest behavior by those targeting and harassing so-called internet pirates looks even more disgusting in comparison. Without the internet, these a***e holes would be unknown and irrelevant. They exploit the internet when it suits them, then resort to practically Victorian-era copyright laws to squeeze every last drop of profit they can make while they have their 15 minutes of fame. The film looks like superficial rubbish. Maybe they’re taking this legal action as a cheap way to promote it. Brandis has demonstrated complete ignorance (this is a man intent on enhancing a book library in this day and age, after all!) and should be kicked from the A-G’s portfolio ASAP!

Many households share wifi amongst family and friends and so share the IP address. What the studio may get is details of the account holder.
If you are on the studio’s list and you as account holder get a letter demanding payment, how can you can prove it wasn’t you?
Getting someone else to confess might not be easy (are you going to quiz all your kids friends etc.?).
To me it seems IP is not enough evidence to say it was you.

A looming problem with all this is that our current government is completely on the side of large and multinational business interests – I really think they believe in the rights of business more than they do in any god. The international trade agreement currently being negotiated behind our backs at the behest of American interests will hand all the cards to them, and make it even more difficult for chicanery such as speculative invoicing to be resisted in the courts by ordinary citizens.

iiNet, I have been with your company since 2001.
I am appalled that movie distributors/copy writers have the audacity to come after the end user. If a company/entity fails to put sufficient security measures in place, to prevent so called pirateer’s obtaining their material…. Then too bad.
Banks use SSL security to help protect its customers, Why aren’t the distributors do something similar. i.e. – cost.
Its easier to infringe the Mum’s, Dads and kids of the world, than maintain their own security measures on their intellectual property.

Thank god someone will stand up to the ridiculous attempts of the stupidly wealthy and greedy American film industry to try an effect everybody on the planets privacy and internet freedom. if we have learnt anything from the limewire experience it is that money talks and bulls#*t walks unfortunately. if this succeeds it will pave the way for internets filters and make Australia the next communist regime following in the footsteps of China.

This is worrying news as I live in a share house and we’ve had quite a few tenants over the past year and half. Is iinet going to let account holders know if they are affected and a third party is trying to find out their information?

Our actual internet account holder has been traveling abroad for the past 2 years, so I don’t know how it would work if they were send him a speculative invoice for the unapproved actions of tenants. It’s pretty concerning as either way it could end up being a costly exercise.

I was wondering, how long does iinet keep records that allow ISPs to match IPs for.

In September 14, in the iinet blog it was said

” If rights holders are to identify those they allege are infringing copyright, they would need ISPs to match IP addresses to customer details. Presently, iiNet has no need to retain the data required for matching. This means a raft of new data retention obligations would accompany any three strikes or ‘notice’ scheme (you know – the one that doesn’t work).”

If iiNet fails in the Federal Court, does it intend to proceed if necessary to appeal and ultimately to the High Court as it has in the past? Secondly, has funding or other support been offered by Dodo and the others (but not Optus and Telstra, strange they have been omitted)?

How can a ip address be linked to person, a ip address is not a person’s identity which is exactly what the courts said in other countries. Unless you catch the person in the act, then it is difficult to prove who downloaded a file. I’m not supporting illegal downloads but if the Dallas buyers club win, a lot of innocent people could be targeted that have done nothing wrong and could get messy. This should have been thrown out of the courts at the initial hearing but good on you iinet for fighting this. Even the lawyers representing the Dallas buyers club admitted they could target the wrong people.

Another bully picking on someone on the playground. iiNet has so far been the only company (to the best of my knowledge) to do not only do what is the right thing by their customers, but what is morally right.

“iiNet will continue to defend the privacy of its customers’ personal details as we are entitled to do so under Australian law”.
If that is the case, then if iiNet disclose personal customer information then iiNet will be open to litigation under Austalian Law where customers can sue iiNet for doing so.

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